53 Wis. 669 | Wis. | 1882
The following'opinion was filed October 18, 1881:
This is an action brought by the respondent against the appellant to recover moneys alleged to have been
Upon the part of the appellant it was shown — although it appears from the record that upon the objection of the respondent the court held it inadmissible — that the contract of
Upon the defense, the appellant offered to show that, after the expiration of the contract of 1865 he made a new contract with the company, different from the contract of 1865, and' also to show what such contract was. This was objected to by the counsel for the respondent, and excluded by the judge,, holding, as above stated by him, that under the general denial-lie could show nothing in bar of the plaintiff’s claim, except the fact that he had paid the money to the company. We
.As the evidence stood when the appellant offered to show what' the existing contract of agency was between the company and the appellant, there was no evidence in the case showing the nature or character of the contract between the parties. The contract of 1865 was shown to have terminated long before the moneys sought to be recovered had been collected by the appellant. The case stood simply on the fact that .the appellant was agent at the time the money was collected; that he had collected it as the agent of the company, and refused to pay over on demand; and that some of the money has been converted to his use. It is probable, as stated by the learned circuit judge, that this evidence made a prwna facie case for the plaintiff, and, unexplained, would have justified a verdict in its favor. It seems to us very clear that, in this state of the proofs, it was competent for the appellant to show what the character and nature of his agency was, and what his rights were under his contract with the company.- The respondent charges him with the unlawful conversion of its money. How can this court, or the circuit court, know that there has been an unlawful conversion of the money collected by the appellant for the respondent, under the terms of the contract between the parties, until the contract is brought before the court by the evidence? The appellant having offered to show that there was a specific contract between the parties,
It seems to' be well settled that, in an action for the wrongful conversion of personal property, under the general denial the defendant is entitled’to give in evidence any facts which disprove the plaintiff’s title to the property in controversy, and also any facts which disprove a conversion by the defendant. Timp v. Dockham, 32 Wis., 146; Delaney v. Canning, 52 id., 266; Edgerly v. Bush, 16 Hun, 80; Robinson v. Frost, 14 Barb., 536; Rost v. Harris, 12 Abb. Pr., 446; Stoddard v. Onondaga Annual Conference, 12 Barb., 573; Jones v. S. & F. Railroad Co., 42 Wis., 306-10.
The circuit court should have permitted the appellant to prove the contract between him and the respondent. Such contract was clearly material, and, if proved, it might have shown that there had been no conversion of the money collected by the defendant, which was the material question in the case. The fact that the plaintiff had made out a gyrirria facie case of conversion, without showing the particulars of the contract between the parties, was no reason for excluding the proof of such contract.
It is urged by the learned counsel for the respondent, that, admitting that the ruling of the circuit judge was erroneous in rejecting the evidence of the existing contract, still the judg
After the defendant’s offers of evidence were excluded under the pleadings, upon affidavit of the counsel for the appellant that he verily believed the evidence offered would and should have been received under the general denial, and that he was surprised at the rulings of the learned circuit judge upon the trial, the appellant - asked leave to amend his answer so as to state the facts upon which he relied in a separate answer as a defense, and at the same time asked leave to plead the same facts as a foundation for a counterclaim against the respondent. The learned circuit judge refused to permit the matters to be pleaded as a defense or counterclaim, on the ground, as he alleges, that he had no power to permit such amendment. Of the power of the circuit court to permit an amendment on the trial setting up a defense to the action which was not already set up by his answer, there can be no doubt. This court has so held in a great many cases. See Brayton v. Jones, 5 Wis., 117, and note of Chief Justice DixoN on the subject, id., 627 and 628, where all the cases are cited; Carmichael v. Argard, 52 Wis., 607. Whether, in a given .case, the circuit court ought to grant the application in the exercise of its undoubted power, is generally a matter of discretion; and when the application is decided in the exercise of that discretion, this court will not set aside the order of 'the circuit court unless there is a gross abuse of such discretion, or a violation of some well-settled rule of law, or the court
Should the defendant have been permitted to plead these matters as a counterclaim, so as to enable him to recover his alleged damages for the breach of the alleged contract by the company? This matter, we think, was also a matter of discretion on the part of the court. The legislature, by the enactment of subdivision 3, sec. 2656, B. S., has conferred upon the defendant, in an action where a non-resident is plaintiff, the
In this case the defendant claims that he has a contract with the plaintiff, under which he received the very money claimed by the plaintiff in this action, which the plaintiff has violated, and that by reason of such violation he has suffered damage to an amount equal to the amount of all the money in his hands belonging to the plaintiff and which he has failed to pay over. We see no injustice in allowing the court to determine in an action all the adverse claims of the parties growing out of the contract. If it were certain that the alleged contract between the parties, if proven, would be a full defense to the plaintiff’s action, no great injury would accrue to the defendant by refusing to allow him to set up his counterclaim; but it is evident that the defendant may have a good cause of action upon his alleged contract with the plaintiff and still
We have not thought it necessary to consider at length' the criticisms made by the learned counsel for the respondent upon the sufficiency of the answer as a counterclaim. The objections are mainly directed to matters -of form rather than substance. There may be some things in'thé proposed counterclaim which are somewhat indefinite and uncertain, but we think that it sets out facts sufficient to constitute a cause of action. Any other defects in the pleading may be corrected by a proper motion after it is allowed.
By the Court. — ■ The ‘judgment of the circuit court is reversed, and the cause remanded for a new trial.
A motion for a rehearing was denied January 10, 1882.